Copyright Myths FAQ: 10 big myths about copyright explained

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Brad Templeton

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Dec 12, 1999, 3:00:00 AM12/12/99
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Original-author: br...@clari.net (Brad Templeton)
Archive-name: law/copyright/myths/part1
Last-change: 16 Oct 1995 by netan...@deshaw.com (Mark Moraes)
Changes-posted-to: news.misc,news.answers

10 Big Myths about copyright explained
By Brad Templeton


1) "If it doesn't have a copyright notice, it's not
copyrighted."

This was true in the past, but today almost all major
nations follow the Berne copyright convention. For example,
in the USA, almost everything created privately after April 1,
1989 is copyrighted and protected whether it has a notice or not.
The default you should assume for other people's works is that
they are copyrighted and may not be copied unless you *know*
otherwise. There are some old works that lost protection
without notice, but frankly you should not risk it unless
you know for sure.

It is true that a notice strengthens the protection, by
warning people, and by allowing one to get more and
different damages, but it is not necessary. If it looks
copyrighted, you should assume it is. This applies to pictures,
too. You may not scan pictures from magazines and post them
to the net, and if you come upon something unknown,
you shouldn't post that either.

The correct form for a notice is:
"Copyright <dates> by <author/owner>"
You can use C in a circle instead of "Copyright" but "(C)"
has never been given legal force. The phrase "All Rights
Reserved" used to be required in some nations but is now
not needed.


2) "If I don't charge for it, it's not a violation."

False. Whether you charge can affect the damages awarded in
court, but that's essentially the only difference. It's still a
violation if you give it away -- and there can still be
heavy damages if you hurt the commercial value of the
property.

3) "If it's posted to Usenet it's in the public domain."

False. Nothing is in the public domain anymore unless the
owner explicitly puts it in the public domain(*). Explicitly,
as in you have a note from the author/owner saying, "I grant
this to the public domain." Those exact words or words very
much like them.

Some argue that posting to Usenet implicitly grants
permission to everybody to copy the posting within fairly
wide bounds, and others feel that Usenet is an automatic store and
forward network where all the thousands of copies made are
done at the command (rather than the consent) of the
poster. This is a matter of some debate, but even if the
former is true (and in this writer's opinion we should all pray
it isn't true) it simply would suggest posters are implicitly
granting permissions "for the sort of copying one might expect
when one posts to Usenet" and in no case is this a placement
of material into the public domain. Furthermore it is very
difficult for an implicit licence to supersede an explicitly
stated licence that the copier was aware of.

Note that all this assumes the poster had the right to post
the item in the first place. If the poster didn't, then all
the copies are pirate, and no implied licence or theoretical
reduction of the copyright can take place.

(*) Copyrights can expire after a long time, putting someting
into the public domain, and there are some fine points on
this issue regarder older copyright law versions. However, none
of this applies to an original article posted to USENET.

Note that granting something to the public domain is a complete
abandonment of all rights. You can't make something "PD for
non-commercial use." If your work is PD, other people can even
modify one byte and put their name on it.

4) "My posting was just fair use!"

See other notes on fair use for a detailed answer, but bear
the following in mind:

The "fair use" exemption to copyright law was created to allow
things such as commentary, parody, news reporting, research and
education about copyrighted works without the permission of the
author. Intent, and damage to the commercial value of the
work are important considerations. Are you reproducing an
article from the New York Times because you needed to in order
to criticise the quality of the New York Times, or because you
couldn't find time to write your own story, or didn't want your
readers to have to pay to log onto the online services with the
story or buy a copy of the paper? The former is probably fair
use, the latter probably aren't.

Fair use is almost always a short excerpt and almost always
attributed. (One should not use more of the work than is
necessary to make the commentary.) It should not harm the
commercial value of the work (which is another reason why
reproduction of the entire work is generally forbidden.)

Note that most inclusion of text in Usenet followups is for
commentary and reply, and it doesn't damage the commercial
value of the original posting (if it has any) and as such it
is fair use. Fair use isn't an exact doctrine, either. The
court decides if the right to comment overrides the copyright
on an indidvidual basis in each case. There have been cases
that go beyond the bounds of what I say above, but in general
they don't apply to the typical net misclaim of fair use.
It's a risky defence to attempt.

5) "If you don't defend your copyright you lose it."

False. Copyright is effectively never lost these days, unless
explicitly given away. You may be thinking of trade marks, which
can be weakened or lost if not defended.

6) "Somebody has that name copyrighted!"

You can't "copyright a name," or anything short like that.
Titles usually don't qualify -- but I doubt you may write a
song entitled "Everybody's got something to hide except for
me and my monkey." (J.Lennon/P.McCartney)

You can't copyright words, but you can trademark them,
generally by using them to refer to your brand of a
generic type of product or service. Like an "Apple"
computer. Apple Computer "owns" that word applied to
computers, even though it is also an ordinary word. Apple
Records owns it when applied to music. Neither owns the
word on its own, only in context, and owning a mark doesn't
mean complete control -- see a more detailed treatise on
this law for details.

You can't use somebody else's trademark in a way that would
unfairly hurt the value of the mark, or in a way that might
make people confuse you with the real owner of the mark, or
which might allow you to profit from the mark's good name.
For example, if I were giving advice on music videos, I
would be very wary of trying to label my works with a name
like "mtv." :-)

7) "They can't get me, defendants in court have powerful rights!"

Copyright law is mostly civil law. If you violate copyright
you would usually get sued, not charged with a crime.
"Innocent until proven guilty" is a principle of criminal
law, as is "proof beyond a reasonable doubt." Sorry, but in
copyright suits, these don't apply the same way or at all.
It's mostly which side and set of evidence the judge or
jury accepts or believes more, though the rules vary based
on the type of infringement. In civil cases you can even
be made to testify against your own interests.

8) "Oh, so copyright violation isn't a crime or anything?"

Actually, recently in the USA commercial copyright
violation involving more than 10 copies and value over
$2500 was made a felony. So watch out. (At least you get
the protections of criminal law.) On the other hand, don't
think you're going to get people thrown in jail for posting
your E-mail. The courts have much better things to do than
that. This is a fairly new, untested statute.

9) "It doesn't hurt anybody -- in fact it's free advertising."

It's up to the owner to decide if they want the free ads or
not. If they want them, they will be sure to contact you.
Don't rationalize whether it hurts the owner or not, *ask*
them. Usually that's not too hard to do. Time past,
ClariNet published the very funny Dave Barry column to a
large and appreciative Usenet audience for a fee, but some
person didn't ask, and forwarded it to a mailing list, got
caught, and the newspaper chain that employs Dave Barry
pulled the column from the net, pissing off everybody who
enjoyed it. Even if you can't think of how the author or
owner gets hurt, think about the fact that piracy on the net
hurts everybody who wants a chance to use this wonderful new
technology to do more than read other people's flamewars.

10) "They e-mailed me a copy, so I can post it."

To have a copy is not to have the copyright. All the E-mail
you write is copyrighted. However, E-mail is not, unless
previously agreed, secret. So you can certainly *report* on
what E-mail you are sent, and reveal what it says. You can
even quote parts of it to demonstrate. Frankly, somebody
who sues over an ordinary message might well get no damages,
because the message has no commercial value, but if you want
to stay strictly in the law, you should ask first. On the
other hand, don't go nuts if somebody posts your E-mail. If
it was an ordinary non-secret personal letter of minimal
commercial value with no copyright notice (like 99.9% of all
E-mail), you probably won't get any damages if you sue them.


----------------- In Summary ---------------------------

These days, almost all things are copyrighted the moment they
are written, and no copyright notice is required.

Copyright is still violated whether you charged money or not,
only damages are affected by that.

Postings to the net are not granted to the public domain, and
don't grant you any permission to do further copying except
*perhaps* the sort of copying the poster might have expected
in the ordinary flow of the net.

Fair use is a complex doctrine meant to allow certain valuable
social purposes. Ask yourself why you are republishing what
you are posting and why you couldn't have just rewritten it
in your own words.

Copyright is not lost because you don't defend it; that's
a concept from trademark law. The ownership of names is
also from trademark law, so don't say somebody has a name
copyrighted.

Copyright law is mostly civil law where the special rights
of criminal defendants you hear so much about don't apply.
Watch out, however, as new laws are moving copyright
violation into the criminal realm.

Don't rationalize that you are helping the copyright holder;
often it's not that hard to ask permission.

Posting E-mail is technically a violation, but revealing
facts from E-mail isn't, and for almost all typical E-mail,
nobody could wring any damages from you for posting it.

-----------------------------------------------------------

Permission is granted to freely copy this
document in electronic form, or to print for
personal use. If you had not seen a notice
like this on the document, you would have to
assume you did not have permission to copy it.
This document is still protected by you-know-
what even though it has no copyright notice.

It should be noted that the author, as publisher of an
electronic newspaper on the net, makes his living by
publishing copyrighted material in electronic form and has
the associated biases. However, DO NOT E-MAIL HIM FOR LEGAL
ADVICE; for that use other resources or consult a lawyer.
Also note that while most of these principles are universal
in Berne copyright signatory nations, some are derived from
Canadian and U.S. law. This document is provided to clear
up some common misconceptions about intellectual property
law that are often seen on the net. It is not intended to
be a complete treatise on all the nuances of the subject. A
more detailed copyright FAQ, covering other issues including
compilation copyright and more intricacies of fair use is
available in the same places you found this note, or for FTP
on rtfm.mit.edu in pub/usenet-by-group/news.answers/law/copyright/faq.
Also consider gopher://marvel.loc.gov/11/copyright for
actual statutes. Another useful document is
http://www.eff.org/pub/CAF/law/ip-primer

This FAQ can be found at http://www.clari.net/brad/copymyths.html


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